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Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, a new version of the unconstitutional conditions doctrine has been increasingly used to rob public employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the subsidy approach in the government as employer context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as its own and regulates it freely. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law.

This article argues for the restoration of Pickering, its constitutional balancing standard, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to speak without fear of retribution, assume the role of the vanguard of the citizenry, and protect fellow citizens from government fraud, waste, and abuse.